I am walking down the street when out of a sewer swirls a giant black
tentacle, waving in my face. It is the ancient Britain lurking beneath the
pavement, a place of primitive prejudice which nobody has the guts to
reform. It keeps trying to claw the 21st century back to a foetid swamp of
cruelty and unfairness. Along its ghastly surface are rows of suckers,
called lawyers.

Yesterday one such tentacle wrapped itself round my brain. It was the
Trupti Patel child murder acquittal. I realised that modern Britain is
ruled by a Government that still throws mothers into jail if they are
unlucky enough to have babies that die suddenly. Civilised countries
regard such incidents as personal tragedies, not cause for a state
lynching. In Sweden or Germany, even if the mother is guilty, she is given
sympathy and treatment, not handled as a common murderer.

The courts of justice are the same as tried the Salem witches. They summon
juries to pass public judgment on these wretched women, calling in aid a
witch-finder general, the hawkish Professor Sir Roy Meadow. He has no time
for classic jurisprudence. To him a mother is guilty unless “proven
otherwise”. Two cot deaths are suspicious and three are murder. To hell
with any genetic propensity to multiple deaths. This is to be tabloid
justice. New Labour must stand tough on dead babies.

Mrs Patel was Sir Roy’s latest target. She had a healthy baby and was
frantic on the death of their second child. She and her husband became cot
death experts, purchasing copious monitoring equipment. After a second cot
death, the desperate Mrs Patel conceived again and had doctors constantly
examine and monitor her baby girl. When she died after just 22 days, her
chest monitor failing to work, Mrs Patel’s attempts at resuscitation
broke some of the baby’s ribs. This and her subsequent acute withdrawal
inclined the Crown to prosecute her, in part for “bottling up her
grief”.

This mother was acquitted with little thanks to science. Sir Roy has
always been the darling of the prosecution in cot-death cases through his
talent for plucking at the emotion of juries. The case swung Mrs Patel’s
way only after her grandmother flew in from India to report on her own
loss of five infants to cot death, which she put down to “God’s
doing”. In 1999 Sally Clark had no such luck in her encounter with
forensic medicine. She spent more than three years in jail before winning
her release on appeal. Like Mrs Patel, Mrs Clark saved herself from life
in jail only by dint of middle-class determination.

Sir Roy is said to possess the courtroom presence of Judge Danforth in
Arthur Miller’s Salem witches play, The Crucible. He can whip any jury
into finding these women guilty. His fancy theory of “Munchausen’s
Syndrome by Proxy” holds that parents harm their children to draw
attention to themselves. It convinces any jury understandably eager, when
asked, to find someone to blame for a child’s death.

Sir Roy is now under (leisurely) investigation by the General Medical
Council for his abuse of statistics in Mrs Clark’s trial. He claimed
that her chances of being innocent were 73 million to one against, a
figure considered crucial in sending her to jail. Yet she was clearly
innocent and found so on appeal. Sir Roy’s figures were so palpably
wrong that the Royal Statistical Society wrote to the Lord Chancellor to
complain. Nothing was done. Instead the Crown has continued to use Sir Roy
to convict women in such cases.

The system is rotten. In British trials experts are paid not to help the
court with impartial evidence, as is customary in most other countries.
They are paid to lend a veneer of objectivity to one side in the argument.
The hope is that 12 good citizens, the jury, can dig out the truth from
this melange of professional bias and emotion. It is theatre, not justice.

Angela Canning, an otherwise respectable woman, found herself jailed for
life last year after the cot deaths of her two children, with Sir Roy
appearing against her. She is in prison awaiting an appeal which is as
tardy as the GMC’s investigation of Sir Roy. Five other mothers are
known to be in jail after jury trials for multiple child deaths. Countless
more have had their surviving children taken away from them.

John Batt, a solicitor now campaigning against these imprisonments,
describes cases on his books in Glasgow, Hastings, Nottingham, Worcester,
Hull, Cardiff and Winchester. “In each case,” he told The Times,
“there was no previous history of abuse and all the friends and
relatives say they were loving parents.” In each case, the Crown
produced the same stage army of “child abuse experts” to give evidence
against them.

I do not doubt that a very few parents kill their children deliberately.
Such people are sick and need treatment. Where they have other children,
these must be protected, usually by removing them from harm. I cannot see
what is achieved by sending the mother to prison for life, except her
final destruction. Even removing the children is a serious matter. The
case of William and Michelle Carter, taken up by the London Evening
Standard, saw all four children taken into care after one became sick, in
what appears to be a witch-hunt by Sir Roy and Wandsworth Social Services.
This was despite pleas from all who knew the couple, teachers, doctors,
even the police, that they could have meant their children no harm.

Mrs Patel did not hurt her first child, whom she loves. She and her
husband were not violent criminals but respectable people enduring the
appalling trauma of seeing three children die. The prosecution case relied
on the extraordinary thesis that Mrs Patel was having one child after
another to satisfy a craving for murder. It told the jury to ignore her
remorse since it was “an intention to kill that came to Mrs Patel in one
moment and left her the next”.

I know such lawyers claim to be only role-playing, to be putting a case,
however implausible, before the mercy of the jury. Perhaps Sir Roy is no
more than playing a role too. Perhaps the whole system is a game of seeing
how much public money can be spent on putting women in jail, which Britain
does more than any country in Europe. If so, the system is inhuman and
ludicrously inappropriate. The adversarial system, the distortion of
evidence, the onus to prove innocence and the hyping of juries are all
medieval and barbaric. From what I have read, all cot-death convictions
involving Sir Roy’s evidence should be considered unsafe and those
imprisoned released at once pending review.

Some may consider the Patel verdict a vindication of jury trial. That is
rubbish. This was a rare case of a jury acquitting in a child murder case
only because that case was utterly groundless. Normally juries, always
bound by emotion, convict in such cases. Attempts by the Government to
limit the jury system are being fought by barristers because juries are
their Common Agricultural Policy, encouraging lucrative overproduction of
trials.

The judicial system appears immune to reform, even by the recent,
supposedly radical Lord Chancellor, Lord Irvine of Lairg. Mrs Clark’s
release in January led to pleas for a reform in the use of criminal courts
for such cases. These pleas were ignored. The release coincided with
another investigation into a child tragedy. The Climbie tribunal
confronted an administrative failure, of inadequate, ill-led and
frightened officials who “allowed” a girl to die at the hands of her
guardians.

What happened next was instructive. Those involved in the Climbie case
were castigated and personally destroyed by the tribunal. The Clark
cot-death team were let off scot-free, living to fight another day,
including the trial of Mrs Patel. I find it hard to disagree with those
who claim government operates a double standard. Local government is
treated as run by peasants who can be traduced at will. The judiciary is
run by toffs, who can commit any malpractice they like.

Cot deaths should clearly be handled by an examining magistrate in
chambers, as in Scandinavia and elsewhere. The hope is that yesterday’s
apparent upheaval in the governance of the judiciary may lead to such a
reform. I doubt it. The new “Constitution” Secretary, Lord Falconer of
Thoroton, and the Prime Minister are still lawyers and lawyers are
powerfully attached to territory. Their loyalty to the majesty of the
courtroom is as medieval as their love of the adversarial joust. I cannot
see Britain’s judicial Establishment allowing a handful of weeping women
and wrecked families to erode their precious turf.

sjenkins@thetimes.co.uk

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